Malafu v Hausia [2008] TOSC 11; CV 235-2006 (23 June 2008)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY

CV235 of 2006

BETWEEN :

TEKITOA MALAFU
Plaintiff

AND :

1. LOLESIO HAUSIA
2. KINGDOM OF TONGA:
Defendants

BEFORE THE HON. JUSTICE SHUSTER

Counsel : Mr. Niu for the Plaintiff and Mr. Little for the First and Second Defendants
Dates of hearing : 14 and 15 May 2008
Date of written submissions : 20 June 2008
Date of judgment : 23 June 2008

JUDGMENT

This suit is a claim for damages for an allegation of assault whilst the plaintiff was in police custody. The plaintiff is a citizen of Tonga aged 22 at the time of this complaint. He was employed as a domestic assistant and lived at Tofola, Tongatapu.

THE FACTS.

The first defendant was at all material times a senior police officer, an inspector, stationed at the crime office at the Central Police Station, Nuku'alofa. On the 17th February 2006 the complainant was taken to the central police station from the nearby market by three plain clothed police officers as a suspect described, in an alleged criminal offence. At the central police station he claims he was attacked and assaulted by the first defendant, who coincidentally was the most senior police officer on duty that day.

As a result of the attack and the beating the plaintiff says he received at the hands of the first defendant, the plaintiff suffered various injuries, including cuts to his face, neck and he had pronounced bruising to the centre of his back. He told the court that he was struck with the flat side of an axe, twice towards the centre of his back whilst he was on the floor of the charge office. He alleges being unlawfully assaulted by the first defendant. The plaintiff gave evidence he was further threatened by the first defendant, who used words to the effect that he would, ''go get a gun and shoot him.''

The plaintiff gave evidence he was locked in a police cell, but was released without charge after approximately 15 minutes when a civilian witness was brought to the police station by car and the civilian witness did not identify the plaintiff as the perpetrator of an alleged crime. The alleged crime was an allegation of theft made by the first defendant's wife, to her husband by phone of the theft of her own personal mobile phone. On release from police custody the plaintiff went home and on the advice of a nurse Melanie Siale he sought hospital treatment that same day. His injuries were then photographed and are in evidence before this court.

In his Statement of Claim dated 23rd March 2006 the Plaintiff claims:-

[1] General Damages in the sum of $2,500
[2] Exemplary Damages in the sum of $2,500
[3] Costs of this action
[4] Such further or other relief as the Court may deem fit

On the 27th April 2006 the first defendant filed a Statement of Defence with this Court and a further Statement of Defence on the 4th April 2008. The first defendant admits certain actions, in their SOD but they deny liability to the plaintiff. The parties made certain admissions by way of Agreed Facts.

EVIDENCE

Evidence for the plaintiff was given by (1) the plaintiff in person, (2) his friend Tunitau FONUA and (3) a nurse Melanie SIALE. The court visited the central police station Nuku’alofa’s charge office, to view the locus in quo.

In general terms I found the plaintiff to be truthful. I had sight of the photographs of the injuries alleged to have been inflicted upon the plaintiff by the first defendant. I also heard evidence from a qualified nurse; albeit the nurse Melanie Siale was related to the plaintiff. She testified she saw injuries on the plaintiff very shortly after the alleged incident and as a result of seeing the injuries she took the plaintiff straight to hospital.

The plaintiff’s friend Tunitau Fonua testified he was with the plaintiff in the market when they were approached by the police officers. He followed the plaintiff to the police station and stood near the door to the charge office. He testified he saw the plaintiff on the floor and in effect corroborated in most part the evidence of the plaintiff. I also heard evidence from the defendant in person and from a police officer on duty at the time of the alleged incident but he remained outside with colleagues.

In most jurisdictions there are laws governing the arrest of any suspect, and rules for the questioning of witnesses. Persons coming into the custody of the police are protected by rules and regulations which have developed over the years.

These Rules are in put into place and are designed to protect (1) all witness (2) and individual police officer(s) they are observed by Judges in cases and are commonly known as The Judges Rules. I will set out the rules in detail to assist all parties.

THE JUDGES RULES

THESE RULES do not affect the basic principles:-

1. That all citizens have a duty to help a police officer to discover and apprehend offenders
   
2. That police, officers, otherwise than by arrest, cannot compel any person against his will to come to or remain in any police station
   

100. That every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the process of investigation, or the administration of justice by his doing so.
     

4. That when a police officer who is making inquiries of any person about an offence has enough evidence to prefer a charge against that person for the offence he should without delay cause that person to be charged or informed that he may be prosecuted for the offence.
   
5. That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been made voluntary, in the sense that it has not been obtained from him by fear of prejudice, or hope, or advantage, exercised or held out by a person in authority, or by oppression.
   

The Principle set out in paragraph [e] above is overriding and applicable in all cases. Within that principle the following Rules are put forward as a guide to police officers conducting investigations. Non-conformity with these Rules may render answers and statements liable to be excluded from evidence in subsequent criminal (or civil) proceedings.

THE RULES

Rule 1. When a police officer is trying to discover whether or by whom an offence has been committed he is entitled to question any person, whether suspected or not, from whom he thinks that useful information may be obtained. This is so whether or not the person in question has been taken into custody so long as he has not been charged with the offence or informed that he may be prosecuted for it.

Rule 2. As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person, or cause him to be cautioned, before putting to him any questions, or further questions, relating to that offence.

The caution shall be in the following manner:-

"You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence."

When after being cautioned a person is being questioned or elects to make a statement, a record shall be kept of the time and place at which any such questioning or statement began and ended and of the persons who were present.

Rule 3. a] When a person is charged with or informed that he may be prosecuted for an offence he shall be cautioned in the following terms:-

"Do you wish to say anything? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence."

[b] It is only in exceptional cases that questioning relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted. Such questions may be put when they are necessary for the purpose of preventing or minimizing harm or loss to some other person or to the public, or for clearing up an ambiguity in a previous answer or statement. Before any such questions are put the accused shall be cautioned in these terms:-

"I wish to put some questions to you about the offence with which you have been charged [or about the offence for which you might be prosecuted] Yu are not obliged to answer any of these questions, but if you do the questions and answers will be taken down in writing and may be given in evidence."

Any questions put and answers given relating to the offence must be contemporaneously recorded, in full, and the record signed by that person, or if he refuses by the interrogating officer and a witness.

[c] When such person is being questioned or elects to make a statement, a record shall be kept of the time and the place in which any questioning or statement began and ended, and record the persons present.

Rule 4.All written statements made after caution SHALL be taken in the following manner.

[a] If a person says that he wants to make a statement he shall be told that it is intended to make a written record of what he says. He shall always be asked whether he wishes to write down himself what he wants to say. If he says that he cannot write or says that he wants someone to write it for him, the police officer may offer o write the statement for him. If he accepts the offer the police officer shall before starting, ask the person making the statement to sign, or make his mark in the following manner.

"I.....................wish to make a statement. I want someone to write down what I say. I have been told that I need not say anything unless I wish to do so and that whatever I say may be given in evidence."

[b] Any person writing his own statement shall be allowed to do so without any prompting, as distinct from indicating to him what matters, are material.

[c] The person making the statement, if he is going to write it himself, shall be asked to write out and sign before writing what he wants to say, the following:-

"I make this statement of my own free will. I have been told that I need not say anything unless I wish to do so and that whatever I say may be given in evidence."

[d] Whenever a police officer writes the statement he shall take down the exact words spoken by the person making the statement, without putting any questions other than such as may be needed to make the statement coherent, intelligible and relevant to the material matters, he shall not prompt him.

[e] When the writing of a statement by a police officer is finished the person making it shall be asked to read it and to make any corrections, alterations or additions he wishes. When he has finished reading it he shall be asked to write and sign or make his mark on the following Certificate at the end of the statement.

"I have read the above statement and I have been told that I can correct, alter or add anything I wish. This statement is true. I have made it of my own free will."

[f] If the person who has made the statement refuses to read it, or to write the above mentioned Certificate at the end of it, or to sign it, the most Senior Police Officer present [In the station] shall record on the statement itself and in the presence of the person making it what happened. If the person making the statement cannot read or refuses to read it, the officer who has taken it down shall read it over to him, and ask him whether he would like to correct alter or add anything and put his signature or make his mark at the end. The most senior police officer shall then certify on the statement itself what he has done.

RULE 5. If at any time after a person has been charged with, or informed that he may be prosecuted for an offence a police officer wishes to bring to the notice of that person any written statement made by another person who in respect of the same offence has been charged, or informed that he may be prosecuted, he shall hand that person a true copy of such written statement, but nothing shall be said or done to invite any reply or comment. If that person says that he would like to make a statement in reply, or starts to say something he shall at once be cautioned or further cautioned as prescribed in Rule 3 [a]

RULE 6. Persons other than police officers charged with the duty of investigating offences or in charging offender’s shall so far as may be practicable, comply with these rules.

LIABILITY

In Tonga Police Officers are enlisted into the Force, and appointed by the Minister of Police with the approval of the Cabinet Section 8 (1) and 11 of the Police Act of 1968, and so they are essentially appointed by the Crown. Officers are paid from public funds by money approved by Parliament (section 5 of the Police Act 1968, and the Schedule of the 1988-89) Appropriation Act 1988 Vote number 9.

Police Officers therefore fall squarely within the criteria for vicarious liability by the Crown enunciated by Clerk and Lindsell Par 2-04 on page 144.

In Tonga the relevant legislation is the Crown Proceedings Act, where section 4 states that:-

''....the Kingdom of Tonga shall be subject to all those liabilities in tort to which if it were a private person of full age and capacity, it would be subject-

(a) In respect of torts committed by its servants of agents...''

It is clear that police officers are servants of the Kingdom. I find as a fact that the second defendant can be vicariously liable for the torts of all police officers in the Kingdom. It is clear from the evidence in this case that the first defendant was at the time of the allegation working at his place of duty upstairs in the CID Office.

At a point in time the first defendant received a telephone call from his wife concerning the alleged theft of her own personal mobile phone. Upon taking this call the First Defendant decided to become the investigator with, he said a duty to investigate the alleged crime, in this case the alleged theft of a recently purchased mobile phone from his wife which occurred at the Salvation Army Office. The concept of any police officer investigating a crime, allegedly committed against ones owns spouse in my view is fraught with danger. This should never have occurred. The first defendant should have passed this enquiry and investigation into the allegation of theft by or towards his wife, to another police office. In short the first defendant should never have got involved this is a serious lack of judgment on the officer’s part and is perhaps why this incident happened in the first place with him getting involved either emotionally or perhaps revengefully.

The evidence given by the complainant, if I accept it; indicates the plaintiff while he was seated on a bench in the charge room at the central police station was unlawfully assaulted without just cause by first defendant. The photographic evidence standing on its own reveals the plaintiff was severely beaten by someone. My task is to decide was this assault upon the plaintiff committed by the first defendant unlawfully, or, was the first defendant acting in self defence, as he claims in his statement of defence filed in this court?

The plaintiff testified he was punched and was stamped upon in the area of his neck, and was hit twice on his back with some form of weapon. The plaintiff told the court the weapon used to assault him on his back, was an axe. If that is the case, then the use of an axe upon any human being in any form of assault is an extremely dangerous thing to do. It is a crime. An axe is a fearsome weapon in itself. The plaintiff was never shaken in cross examination by an experienced defence counsel, on the issue of the use of an axe. The plaintiff’s witness also testified on his behalf and he tended to corroborate the plaintiffs version, as did the evidence of the nurse (albeit she is related to the plaintiff). The photograph before the court also tends to confirm an assault by use of a weapon. The evidence reveals this was a vicious beating more so if it is true the plaintiff was on the ground at the time of the alleged assault and in the custody the care and the control of police officers whose duty it is; is to protect all the citizens and visitors to the Kingdom.

FINDINGS

In my view the evidence against the first defendant speaks volumes for itself.

• It is clear the plaintiff came to the police station from the market voluntarily upon request by three police officers in order for them to investigate an alleged crime.
  
• I find as a fact that the evidence reveals the plaintiff had not been arrested by the officers, and thus he attended the central police station voluntarily and was free to leave at any time.
  
• It is also clear to me the plaintiff had never been informed of any of his legal rights by any officer or the officer in charge of the CPS.
  
• I find as a fact that the first defendant was on duty at the time of this alleged incident.
  
• I find as a fact that the first defendant was also the most senior police officer on duty that day, and as such was in charge of the central police station as such as a senior police officer he owed a high duty of care to all persons, be they police officers, visitors, civilians, or prisoners within that central police station.
  
• Upon hearing all the evidence (both for the plaintiff and the defendant) I find as a fact that the first defendant unlawfully struck the plaintiff without just cause to his face causing a cut and bruising (whereby an old wound was reopened) that assault was unlawful and unnecessary.
  
• I find as a fact that the first defendant then stood on the plaintiff’s neck whilst the plaintiff was on the ground, and that assault was unlawful and unnecessary.
  
• I find as a fact the first defendant struck the plaintiff twice on his back with the flat side of an axe, and that assault was unlawful and unnecessary.
  
• Because I found as a fact the assault on the plaintiff was unlawful, I come to the inevitable conclusion that I not believe the police officer the first defendant was ever acting in self-defence as the first and second defendant alleges in their Statement of Defence dated 4th April 2008.
  
• The evidenced I hear revealed there were other police officers around at the time of this incident, the evidence is SADLY they did not intervene in order to stop the assault on the plaintiff by a senior police officer.
  
• Upon hearing the evidence both for the plaintiff and the defendant I find as a fact the plaintiff was after he had been assaulted in the charge area of CPS that he was placed in a cell and not in a room as the police stated in court.
  
• It is also clear from the evidence the plaintiff was a detained person, in other words he was never free to leave the police station, that I find unlawful.
  
• In effect I find the plaintiff was unlawfully arrested and detained for about 20-25minutes by the police.
  
• I also find as a fact that having been assaulted by the first defendant that he was denied proper medical treatment, by both the first and the second defendant in this action.
  

THE ISSUE OF DAMAGES IN THIS CASE

Sadly there are a number of cases in Tonga brought against serving police officers who have been sued for assault. I have had sight of Tonga v Ministry of Police [2000] Tonga LR 111; and Lavaka v Ministry of Police [2000] Tonga LR 17 In that case damages were awarded on a scale more in keeping with this claim, that was also a case of unlawful detention.

Was this a case of a violent assault? In my view the use of any weapon in the course of an assault by anyone, is always an aggravating feature; and this more particularly so if the weapon used in the assault as in this case is a sharp or a bladed instrument. The plaintiff said in his evidence he was assaulted by the first defendant with an axe. He testified he saw an axe and he held onto the axe while trying to defend off blows and I on that basis I believe him. The picture to his back corroborates the use of a weapon.

• Damages for an assault must be based upon the actual injuries sustained. I have considered a proper amount for the injuries to the plaintiff in this case to be the sum of $1,500.00.
  
• I have also considered an award for aggravated damages for injuries to the victim’s pride. I consider an award of $150.00 to be appropriate in this case.
  
• I consider that an award of $2,000.00 be awarded as exemplary damages primarily because this same officer was involved in a case of assault previously. This fact came out in evidence and it is material whenever a court goes on to consider the question of exemplary damages.
  

Does any fault lie at the feet of the second defendant in this case? The answer must be an emphatic yes. The second defendant allowed this particular officer to be on duty, and moreover he was the senior officer in charge of a police station on the date in question. The second defendants allowed the first defendant to investigate a crime reported by his own wife a member of his family. That is, not and can never be in the spirit of traditional policing.

The second defendants cannot turn away from the fact this officer was also a previous defendant in a similar action for assault in the year 2000.

• As a result I award damages in the sum of $100.00 against the second defendants in this case, on the facts as they pertain to this particular case and comment in particular because an injured man the plaintiff was not offered medical treatment when he left the station, and other police officers declined to help prevent this incident they stood and watched.
  
• The plaintiff should also have his costs to be taxed.
  

It also is apparent to me that this particular action should have been settled by the parties out of court and prior to hearing of the matter. The case was not settled to the satisfaction of all parties, hence judgment today against these two defendants.

• Against the first defendant I award the sum of: - $3,650.00
• Against the second defendant I award the sum of:- $100.00
• For the reasons given in this my judgment
  

NUKU'ALOFA : 23 June 2008

JUDGE